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June 6, 2006

Major Third Circuit ruling on post-Booker burden of proof

It's time for sentencing fans to load the printer paper and get out the reading glasses: today the Third Circuit in US v. Grier, No. 05-1698 (3d Cir. June 6, 2006) (available here) gives us 68 pages on the appropriate post-Booker burden of proof. Writing for the Grier majority in a split 2-1 opinion, Circuit Judge Fisher introduces the opinion this way:

The Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), that facts relevant to the advisory United States Sentencing Guidelines do not implicate the constitutional right to trial by jury. We now confirm that these facts likewise do not implicate the constitutional right to proof beyond a reasonable doubt.

Judge Sloviter authors a lengthy dissent in Grier, which starts this way:

I respectfully dissent from the opinion of the majority. In treating the finding of an aggravated assault as a sentencing factor that may permissibly be used to enhance Grier's sentence, the majority has abrogated the Fifth Amendment of the United States Constitution. The Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), did not discuss the Fifth Amendment nor did it suggest that it had no role in sentencing: certainly the majority, as an inferior court, has no authority to abnegate one of the most important, if not the most important, of the rights that the Constitution assures criminal defendants.

Regular readers know that this burden-of-proof issue is one I have been interested in right after Booker was handed down (and this is further evidenced by some of the posts linked below). Thus, after I have some time to take in the Third Circuit's work (perhaps on the links this afternoon), I am sure I will have additional thoughts and comments to post. In the meantime, readers are highly encouraged to use the comments for reactions.

Comments

Opinions that take such a broad reading of Booker forget not only Blakely, but that the first half of Booker held that the USSG were unconstitutional. I do recall there being something about a right to a jury being mentioned somewhere in there...The dissent was right--the majority punted.

I understand that the USSG operates in that mystical place of judicial discretion, but given some of the language in both Booker and Blakely the court should have undertaken a far more rigorous analysis. The burden of proof issue, I think, is an open question again.

Posted by: Lawyer | Jun 6, 2006 2:32:30 PM

Anyone want to chime in on whether the majority opinion subsumes within it (and necessarily rejects) a Fifth Amendment challenge based on the use of conduct underlying acquitted counts as "relevant conduct" to determine the advisory Guidelines range?

I have a Third Circuit appeal pending raising that very claim, but I anticipate the government invoking Grier as disposing of it.....

Posted by: Steve | Jun 6, 2006 3:36:40 PM

I am greatly saddened to see the majority in Grier, including the Chief Judge, reach out to "overrule" a 15-yr-old landmark 3d Cir. precedent authored by the late Judge Becker -- US v Kikumura -- which held that when a finding of fact pushes the length of sentence up manyfold, that is, a "tail which wags the dog," then the Due Process Clause requires proof by a preponderance of the evidence. This rule was based on Supreme Court precedent creating a "sliding scale" of due process reflecting the seriousness of the interests at stake balanced against the risk of error. I hope the FPD for MDPA carries this case forward, in memory of Judge Becker, and on the strength of former Chief Judge Sloviter's powerful dissent.

Posted by: Peter G | Jun 6, 2006 9:34:53 PM

The offense requires no jury determination, but the date of offense does.
On May 10, 2006, the Third Circuit remanded the case UNITED STATES OF AMERICA v. TODD TYKARSKY No. 04-4092 stating in footnote 18;
“The Government argues that Harris v. United States, 536
U.S. 545, 560-568 (2002), permits judicial fact-finding in these
circumstances. We disagree. Harris held that Congress may
condition mandatory minimums on judicial findings so long as
the sentence remains within the range authorized by the jury’s
verdict. Id. at 567. The date that Tykarsky violated § 2422(b)
is not a “sentencing factor” as that term is used in Harris.
Congress has not “‘simply taken one factor that has always been
considered by sentencing courts to bear on punishment . . . and
dictated the precise weight to be given that factor.’” Id. at 568
(quoting McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986)).
Indeed, Congress has not authorized any judicial fact-finding.
Cf. id. at 567 (“The political system may channel judicial
discretion – and rely upon judicial expertise – by requiring
defendants to serve minimum terms after judges make certain
factual findings.) (emphasis added). The date of the violation
determines under which version of § 2422(b) Tykarsky should
be sentenced, and the jury must therefore find beyond a
reasonable doubt that an element of the crime occurred after the
effective date of the PROTECT Act. See, e.g., United States v.
Torres, 901 F.2d 205, 229 (2d Cir. 1990) (requiring a jury
finding where amendment increased mandatory minimum from
10 years to life).” id
The conclusion that the date of the offense must be found by the jury beyond a reasonable doubt pales when compared to the majority opinion in Grier, where enhancements that constitute a separate offense do not enjoy the Due Process rights.
“The primary issue in this case is whether the Due Process
Clause requires facts relevant to enhancements under the United
States Sentencing Guidelines, particularly those that constitute
a “separate offense” under governing law, to be proved beyond
a reasonable doubt. The Supreme Court did not reach this issue
in Booker, see 543 U.S. at 259, and we declined to address it in
United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), see id. at
330 & n.7. Nevertheless, we believe that the discussion in
Booker regarding the Jury Trial Clause of the Sixth Amendment
applies with equal force to the Due Process Clause of the Fifth
Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 484
(2000) (discussing these “associated” provisions). That a
defendant does not enjoy the right to a jury trial under Booker
ineluctably means that he or she does not enjoy the right to
proof beyond a reasonable doubt.U.S. v. GRIER.

I hope that it is/was obvious that when I wrote on June 6 at 9:34 pm that in the tail-wags-dog situation Kikumura requires proof "by a preponderance of the evidence," what I meant was the OPPOSITE of that! What Kikumura requires in that situation is proof by MORE THAN a mere preponderance, that is, by clear and convincing evidence. My bad. My apologies.